In January 2021, Illinois passed the Pretrial Fairness Act (PFA). The PFA fundamentally changes bond court practices and pretrial release in Illinois by abolishing cash bail, guaranteeing initial pretrial release for most defendants, creating new pretrial hearing processes, curtailing the conditions that may be placed on defendants released pretrial, and limiting revocation and modification of pretrial release.

The changes adopted in the PFA do not take effect until January 1, 2023. In order to provide Illinois’ criminal justice practitioners and policy makers with information prior to the effective date of the PFA, Loyola’s Center for Criminal Justice Research is producing a series of research briefs to provide context and insights for discussion of the potential impact of the law. By examining data from past practices, the goal of these research briefs is to estimate the potential impact of the PFA on future pretrial practices and outcomes.

This research brief examines trends in the number of individuals arrested and eligible for detention consideration under the PFA. The analyses were produced in collaboration with the Illinois Sentencing Policy Advisory Council (SPAC) using data from the Illinois State Police’s Criminal History Record Information (CHRI). These data include information for every individual 18 years of age and older arrested in Illinois from 2017 to 2021.

Given the limited amount of statewide data in Illinois regarding pretrial practices, understanding such trends in the volume and characteristics of defendants eligible for pretrial detention or supervision is a starting point to estimating and planning for the potential impact of the PFA.

Which Individuals Are Detainable under the PFA?

Under the PFA there are two groups of individuals who can be considered for initial detention: 1) those eligible based on a “public safety” standard, and 2) those eligible based on a “willful flight” standard. The public safety standard allows for the pretrial detention of individuals charged with specific, detainable offenses

who are also found to pose “a specific, real and present threat to a person”

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(i.e., a threat of willful flight).

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The specific detainable offenses under this standard can be categorized broadly into three groups: 1) non-probationable forcible felonies (e.g., first degree murder, armed robbery, home invasion, aggravated vehicular hijacking, aggravated battery with great bodily harm) and sex offenses, 2) weapon offenses (e.g., illegal firearm possession, unlawful discharge of a firearm, unlawful sale/delivery of a firearm), and 3) domestic violence offenses and violations of orders of protection (VOOP). The willful flight standard allows for the pretrial detention of individuals shown to be a risk for willful flight from prosecution who are charged with either 1) a detainable offense under the public safety standard or 2) any Class 3 Felony or more serious felony offense. (i.e., a risk to public safety).

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How Many Arrests Involve a Detainable Offense?

To examine the volume of arrests for detainable offenses, the analyses looked at two time periods: 2017-2019 (pre-COVID) and 2020-2021 (post-COVID).

The average number of arrests for detainable offenses under the public safety standard remained relatively stable: between 2017 and 2019, there were roughly 47,000 arrests for detainable offenses per year, compared to approximately 44,000 arrests per year in 2020 and 2021 – a drop of just 7% . The number of arrests for detainable offenses under the willful flight standard decreased nearly 24%, from roughly 34,000 arrests per year to 26,000 arrests per year. In contrast, the number of arrests that included only non-detainable offenses decreased markedly – nearly 50% -- from roughly 170,000 arrests per year between 2017 and 2019 to approximately 90,000 arrests per year in 2020 and 2021.

As a result of these different trends, the proportion of all arrests that were detainable under the public safety standard increased from 19% in 2017-2019 to 27% in 2020-2021. By comparison, the proportion of arrests that were detainable under the willful flight standard remained stable at 15% to 17%. However, the proportion of arrests that included only non-detainable offenses decreased from 66% of arrests between 2017 and 2019 to 56% of arrests between 2020 and 2021. These patterns—increasing proportions of arrests detainable under the public safety standard, relatively similar portions of arrests detainable under the willful flight standard, and decreasing proportions of arrests for non-detainable offenses between the two time periods—were consistent across almost all of Illinois’ twenty-four judicial circuits.

What Are the Most Common Detainable Offenses?

Since it is unclear what arrest patterns may look like going forward, we combined both the pre- and post-COVID periods to examine the proportion of arrests for detainable and non-detainable offenses. We also looked more closely at the most common detainable offenses for which individuals were arrested. When looking at the entire period from 2017-2021, roughly 12% of arrests for detainable offenses under the public safety standard involved arrests for non-probationable forcible felonies and sex offenses; an additional 18% involved arrests for firearm possession and related offenses. The large majority of detainable arrests under the public safety standard – nearly 70% – involved arrests for domestic violence offenses or VOOP; and nearly all of these domestic violence and VOOP offenses involved misdemeanor charges. Thus, the large majority of individuals arrested for offenses detainable under the public safety standard were not arrested for forcible felonies, sex offenses, or weapons offenses; rather, they were arrested for misdemeanor domestic violence and VOOP offenses.

When considering all arrests, just 3% involved arrests for non-probationable forcible felonies and sex offenses, just 4% involved arrests for firearm possession and related offenses, and 15% involved arrests for domestic violence/VOOP offenses. An additional 15% involved arrests for offenses eligible for detention consideration under the willful flight standard. As noted above, 63% of all arrests involved offenses that were non-detainable under either standard.

What Are the Risks of New Charges and Failure to Appear (FTA) of Those Arrested?

While the PFA lists specific offenses that are detainable either under the public safety or willful flight standards, not all individuals arrested for such an offense will be detained - the law requires prosecutors to file a motion for detention and requires judges to state a reason for detention if imposed. One possible way to estimate what proportion of individuals may be petitioned for a detention hearing and/or subsequently detained is to examine individuals’ risk of new criminal activity and risk of failure to appear – two criteria that may be used to impose pre-trial detention. The Public Safety Assessment (PSA) is an instrument that provides criminal justice practitioners with information that can inform pretrial decisions, using current charge and criminal history to determine individuals’ risk of new criminal activity and risk of failure to appear while on pretrial release.

The large majority – 69% to 75% – of those arrested for detainable offenses under the public safety standard were not at high risk of new criminal activity. Just 25% to 31% of defendants had an elevated risk for new criminal activity. In turn, 87% to 91% were not at high risk of failure to appear; again, just 9% to 13% had an elevated risk of failure to appear.

Among individuals arrested for offenses detainable solely under the willful flight standard, 82% were not at high risk of failure to appear; just 18% had an elevated risk for failure to appear (however, the PSA does not distinguish between willful flight risk used in the Pretrial Fairness Act and the more broad failure to appear).

Conclusion

Each year, roughly 45,000 arrests occur in Illinois for offenses that are detention-eligible under the public safety standard of the PFA. Most of these arrests – 33,000 per year – are for domestic violence or violations of an order of protection. When public safety consideration is combined with willful flight consideration, roughly 37% of all arrests in Illinois – roughly 70,000 individuals – are at least potentially eligible for a detention consideration, although given the relatively low risk for new criminal activity and low risk of FTA, only a portion of these cases will likely have a detention hearing sought and detention ultimately granted. In the end, as few as 15,500 or as many as 70,000 individuals could be detained once the PFA takes effect.

Methodology

Using the Illinois State Police’s Criminal History Record Information (CHRI) data, SPAC identified every adult arrested in Illinois from 2017 to 2021. This resulted in the identification of roughly 1.1 million unique arrest events. For each of these arrest events, the data were then examined to determine if any of the arrest charges would be eligible for pretrial detention under the PFA’s “public safety standard.” Within the PFA there are specific crimes enumerated that, if charged, make an individual eligible to be petitioned by the county State’s Attorney for a detention hearing, and if a hearing is granted by the judge, to be held in detention pretrial. Loyola and SPAC identified roughly 400 specific statute references for these detainable offenses, and grouped them into three broad categories, including: 1) non-probationable forcible felonies (e.g., first degree murder, armed robbery, residential burglary, aggravated battery) and sex offenses, 2) weapon offenses (e.g., primarily illegal firearm possession, unlawful discharge of a firearm, unlawful sale/delivery of a firearm, and 3) domestic violence and violating an order of protection offenses.